The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat it when dealing with an employee who engaged in protected activity.